What Is a Temporary Custody Form?
Understanding Temporary Custody Forms in Louisiana
What is a Temporary Custody Form? A temporary custody form is just that…temporary and no more than a temporary custody arrangement. Temporary custody can be awarded by the Court during Divorce or Child Custody Litigation or simply it can be consented to by the parties.
Many people confuse temporary custody arrangements with permanent custody arrangements. It is important to note that temporary custody is not permanent custody. When a person has permanent custody of minor children that person has sole unrestricted physical custody of the children. Sure, this person has a lot of responsibility and a lot of rights too, but the person with sole custody of minor children has ultimate control over the children’s lives particularly as it pertains to education, religious upbringing, where and how children respond to medical issues and financial obligations of children too.
Temporary custody forms can be awarded by a Judge before a Final Judgment of Divorce is entered. What this means is that one party has custody of the minor children until a Final Judgment is entered by the Court. However, temporary custody forms can also be consented to by the parties. The parties are able to create their own arrangements on where the children should live and with whom. Those parties can then enter into a consent judgment for temporary custody that creates a temporary visitation schedule as well as awarding temporary sole custody to one party or the other. Some parties can agree to joint custody and they do not want to get the Court involved. As these parties have agreed to all matters pertaining to the custody of the children , the parties are able to enter into a consent judgment as to those issues. This consent judgment must be signed by the judge for it to have the force and effect under law as a typical Court ordered temporary custody arrangement. RULE 43.1 is a rule that governs the procedure for entering a consent judgment with the Court.
A temporary custody order can accomplish a lot of things. First, the parties can move on with their lives following the separation and/or divorce of the parties. Consent judgments that are entered by the Court generally can only be modified upon a showing of unforeseen changes in circumstances. However, temporary orders entered by the Court can essentially be modified at any time upon proper motion of one of the parties. These temporary orders can go away forever if the parties reconcile or it can continually be modified by the Court over the years to keep it in an up to date status.
Temporary custody orders can serve another purpose too. You can stipulate to the procedure and how the Court will enter a final judgment of custody. In Louisiana, during the Divorce period, you cannot simply RAISE YOUR HAND and then it is done like it is in some other jurisdictions. In Louisiana, there is a procedure that must be followed before a Court will award a party sole custody of a minor child. This procedure entails filing a Verification of Relocation by either parent that is going to relocate the minor children out of the jurisdiction. Upon proper verification, either party can request either a hearing or a trial on custody to determine who gets final custody of the minor children.
The bottom line is that temporary custody forms can be your friend before and after a divorce. These orders can provide some security in uncertain times and temporary custody forms can give parties piece of mind during a Divorcelitigation.
When Do You Need a Temporary Custody Form?
In Louisiana, there are several scenarios where a Temporary Custody form may be needed. Consider the following situations:
An emergency situation: If you travel with your minor children and you encounter an emergency, such as a natural disaster or sudden illness, you may be unable to return to Louisiana in time. In this situation, a Temporary Custody form (also known as a Do-It-Yourself Power of Attorney) can appoint a designated individual who may make decisions on behalf of the children in Louisiana while you are away.
Military deployment: Louisiana Revised Statutes Title 9, Section 3557 allows a parent in the armed services the option to grant temporary custody to another, if he or she is unable to visit the child or make parenting decisions during any period of deployment. Base Commanders provide personnel with a power of attorney book in military service members’ packets when they go overseas. The power of attorney in the Louisiana power of attorney book is a completely legal form of power of attorney, and it allows for the temporary grant of custody from the parent until the service member returns home.
Parental unavailability: By law in Louisiana, a parent is defined as "a person not otherwise excluded under the laws of Louisiana who is a natural or adoptive mother or natural or adoptive father of a child." Grandparents, step-parents and other family members are not defined as a parent under Louisiana Revised Statutes Title 9. Usually, individuals who are not legally parents of a child are not permitted to authorize others to take custody of the child except with parental consent. Temporary Custody forms can be used if a non-parent can prove that he/she has custody or assurance of future custody and the parent is unfit or unavailable. For example, a Temporary Custody form would be legal for a non-parent to complete if the non-parent can establish that he or she has been granted physical custody by a judgment of physical custody or has been granted temporary, permanent or intermittent custody of the minor child(ren) for longer than six months prior to the time of the preparation of the power of attorney. In this situation, it would be wise to contact an attorney.
How to Complete a Temporary Custody Form
The first step is to make sure you have the correct form. The Louisiana Supreme Court has made several versions of this form available for download. You should read the instructions carefully before pulling out your pen. There are a total of 5 different forms so you will need to select one that is appropriate based on the situation or the specific question that applies to you.
Form A: Ex Parte Temporary Custody
This form is to use to get immediate temporary custody of a child without giving notice to the other parent. Ex parte means without notice. Judges typically grant ex parte orders without a hearing so this is a way to resolve an urgent issue and obtain a temporary custody order until the other parent can be served or heard.
Form B: Temporary Restraining Order for Joint Custody
This is used when neither party is seeking sole custody of the child. When parents request joint custody, the court recognizes that they will continue to share joint legal custody of the child but one parent will have physical custody (where the child lives) on a temporary basis while the case is pending.
Form C: Pre-Decree / Pre-judgement Sole Custody Temporary Custody
If one parent is seeking full custody, this form is used when parents have been married.
Form D: Post-Decree / Post-judgement Sole Custody Temporary Custody
This version mirrors Form C but is used when the parties are no longer married and the initial custody judgment precedes the filing of a motion for temporary custody.
Form E: Joint Custody – Post-Decree / Post-judgement Temporary Custody
This form is also used when the parties are now divorced but have previously shared joint custody of the children.
Legal Considerations and Implications
There are several legal considerations involved in acquiring temporary custody in Louisiana. Temporary custody is awarded at a judge’s discretion and therefore, it is crucial to know the facts of your situation and prepare your case in advance of appearing before the judge. The following points should be considered by anyone seeking temporary custody or pursuing temporary custody of a child in Louisiana.
- Louisiana law requires that a petitioner (the individual seeking temporary custody) has a legal basis for the requested temporary custody. There are statutes in place that outline the basis for requesting temporary custody, such as neglect, abuse, substance addiction, incarceration or a diagnosed illness or mental disorder.
- In some cases, the state may be responsible for placing the child under the supervision of a guardian ad hoc if there is no suitable individual who is qualified to serve as a temporary custodian. Courts assign the finally appointed guardian primary responsibility in regards to foster care, educational decisions, and emotional and physical well-being of the child and any other minor children living in the home.
- If the custodial parent is deemed unfit or incapable of caring for their child, it may be necessary to appoint a permanent guardian ad hoc. An attorney can assist in preparing the proper documentation to ask the court to permanently sever parental rights in the absence of a biological parent. This is generally only done when the biological family member has lost parental rights under a prior decision by the court.
Whether you’re seeking temporary custody of a child or challenging such a request, it is recommended that you consult an experienced Louisiana family law attorney to understand your case and ensure your interests are protected.
How to File a Temporary Custody Form
The process for filing a temporary custody form in Louisiana courts can vary depending on the specific facts of your case. Each parish in Louisiana has its own rules and procedures. In most cases, you will need to file the following documentation:
- Temporary Custody Form.
- Motion for Temporary Custody.
- Notice of Hearing.
- Affidavit of Facts Supporting an Order for Temporary Custody.
- Order for Temporary Custody.
There may be local forms required in your parish court to support your filing. Check your parish court’s website for additional documentation required.
In most cases , you will need to pay a fee to submit a motion for temporary custody of a child. The temporary custody form must be filed in an office of the court of competent jurisdiction in the parish where the child resides or is found.
It is important to note that, in Louisiana, only a parent or caretaker with legal custody of a child can file a temporary custody form with a parish court. This means that, in most cases, you cannot file a temporary custody form for a child that is in the custody of the Office of Community Services (OCS).
If the temporary custody form is granted by the court, your child will be entrusted to you, other relatives, or friends until a judge enters a permanent custody order in a parish court.
Rights and Duties During Temporary Custody
In Louisiana, the rights and responsibilities of the temporary custodian are defined by Louisiana law. The person or entity who has temporary custody of a child is legally authorized to act on behalf of the child, to make appropriate decisions concerning the child’s care, and to provide for the child’s wellbeing.
Temporary custody allows the custodian to do what is necessary to care for the child, which includes education, medical decisions, food, clothing, and shelter among other things. However, while temporary custody gives wide authority over the child and his or her wellbeing, it does not give all authority over the child. The temporary custodian does not have full authority over the child’s inheritance, which is likely outlined in a will.
Temporary custody allows the custodian to act in a quick manner when making decisions about the child while the legal processes of determining permanent custody are carried out. The temporary custody form temporarily takes the place of the custody order that will result from the process.
When the temporary custody ends, the custodian’s rights also end. The temporary custodian is required by Louisiana law to immediately transfer care, custody, and control of the child back to his or her parents or the state of Louisiana. Failure to do so is in violation of Louisiana law and is against the best interest of the child.
Modifying or Ending a Temporary Custody Arrangement
If both parties agree, it is possible to modify or terminate a temporary custody arrangement. In such an event, all a filer must do is execute a motion based on the agreement of all parties. In other words, in the absence of an objection by the other parent, a temporary order can become permanent.
If there is no agreement, however, an interested party can seek modification by filing a petition in order to modify child custody in Louisiana. The petition must include an affidavit setting forth the facts and circumstances the party believes demonstrates a material change of circumstances since the court rendered its prior judgment. Although not required by statute, many courts require that this document be filed with the initial petition in order to prevent multiple filings. Thus, in order to seek modification of a temporary order, the party must file a petition accompanied by an affidavit setting forth the substantive changes of circumstance.
A party can show a substantial change in circumstances in a variety of ways. Some of the substantial changes that can warrant a modification of the temporary custody arrangement: Once a party has met his burden of showing a material change of circumstances have occurred since the last custody decree, the court will engage in a best interest examination. La. R.S. 9:335(A)(1). In the Louisiana Third Circuit Court of Appeal’s opinion in Barrois v. Barrois, the court outlined the following factors that a trial court can engage in when determining the best interest of the child: While barometers of what constitutes a secure environment may vary, some common ones include the child-friendly environment of a home as opposed to a single-parent bachelor pad. While a party’s financial status can play a role in this determination, the type of home is given more credence than the size of the dwelling. Once the court has made its determination regarding the best interest of the child, it will, in its discretion, award child custody to the party who prevailed in the best-interest examination. Court orders for child custody can be modified or terminated, due to the discretion and nature of the orders. Once a temporary order is granted, it is presumed to be the policy of the law to consider the temporary conditions permanent until a party successfully demonstrates the contrary.
Finding Legal Help
If you are seeking to establish temporary custody in Louisiana, you should seek the help of a skilled family lawyer. There are a number of complex issues that can arise in these cases. For example, if you are going through a divorce, the court will need to evaluate the circumstances to determine whether temporary custody would be in the best interests of the child. The court’s decision could mean the difference between you keeping your child with you and losing custody altogether to your spouse.
On the other hand , if you are not married or are not going through divorce proceedings but are seeking temporary custody, the court must make a determination on whether you have legal grounds for doing so. Your lawyer can help you prepare your case, secure the proper documentation and make the necessary arguments in court to have the best possible chance at success. With the right assistance, you may be able to rest assured that your child is in good hands, while also receiving the support they need.